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UNITED STATES v. NEFF

May 22, 1972

UNITED STATES of America
v.
Martin H. NEFF


Hannum, District Judge.


The opinion of the court was delivered by: HANNUM

HANNUM, District Judge.

 Presently before the Court is the defendant's motion for a new trial pursuant to Rule 33 of the Federal Rules of Criminal Procedure, 18 U.S.C. The defendant's motion for judgment of acquittal pursuant to Rule 29(c) of the Federal Rules of Criminal Procedure, 18 U.S.C., has been abandoned. *fn1"

 The defendant, Dr. Martin H. Neff, is a seventy year old licensed physician who has maintained a general practice in the Borough of Downingtown, Pennsylvania since 1929. On May 12, 1971 a jury found Dr. Neff guilty on five counts of selling and delivering various quantities of stimulant *fn2" and depressant *fn3" drugs in violation of § 301(q)(2) of the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. § 331(q)(2) (Supp V, 1970), amending 21 U.S.C. § 331 (1964), (repealed, Comprehensive Drug Abuse Prevention and Control Act of 1970, P.L. 91-513, Title II, § 701(a), 84 Stat. 1281). In each of the five transactions set forth in the indictment the defendant was dealing with special agents of the Federal Bureau of Narcotics and Dangerous Drugs. The Government in its case in chief, in addition to proving the facts surrounding each of the several transactions, offered expert medical testimony to the effect that in each transaction a physician-patient relationship was lacking between the parties and that the doctor was not acting in the ordinary and authorized course of his profession as required by § 511(a) of the Act, 21 U.S.C. § 360a(b) (Supp. V, 1970), amending 21 U.S.C. § 360 (1964), (repealed, Act of Oct. 27, 1970, P.L. 91-513, Title II, § 701(a), 84 Stat. 1281). By way of defense the doctor took the stand and attempted to show both that his acts were within the ordinary and authorized course of his profession and, further, that he had been entrapped. In addition he offered seventeen character witnesses all of whom testified to the effect that his reputation for being an honest, truthful, and law-abiding citizen was very good, if not excellent. To rebut the defense offered, the Government produced three witnesses. The first, the principal of a high school located some ten to twelve miles from the doctor's place of residence and practice, testified that, among several of his students, the doctor had a bad reputation for being a law-abiding citizen. The second, a former student from the same high school, was offered to prove the defendant's predisposition to commit the offenses charged. He testified to having made repeated purchases of both stimulants and depressants, as often as once a week or more, for three months prior to the Government's investigation and in a manner substantially similar to that by which they were ultimately obtained by the Government agents. He also testified that he had, at times, been accompanied by other students who had been similarly accommodated. The third witness, another former student, testified that once a week or more she would drive with others to a parking area behind the doctor's office. There, she would wait briefly while her companions would obtain uncommonly large prescriptions of amphetamines. She, too, testified that the defendant had a bad reputation for being a law-abiding citizen among those seven or eight students whom she had heard discussing him.

 The defendant's motion for a new trial is comprised of eleven assignments of error. Three have been withdrawn. Before dealing with the remainder, it would seem appropriate to set forth the standards by which a motion for a new trial is judged.

 Rule 33 of the Federal Rules of Criminal Procedure, 18 U.S.C., permits a District Court to grant a motion for a new trial "if required in the interest of justice". The Court may grant a new trial only upon motion of a defendant. United States v. Green, 134 U.S. App. D.C. 278, 414 F.2d 1174, 1175 (1969); United States v. Vanterpool, 377 F.2d 32, 34-36 (2d Cir. 1967). The motion itself is addressed to the Court's sound discretion. Dranow v. United States, 307 F.2d 545, 566-567 (8th Cir. 1962); United States v. Basen, 308 F. Supp. 65, 66 (E.D. Pa. 1970). It has been held that motions for new trials are not favored and should be granted only with great caution, United States v. Redfield, 197 F. Supp. 559, 562 (D. Nev. 1961), aff'd., 295 F.2d 249 (9th Cir. 1961), cert. denied 369 U.S. 803, 82 S. Ct. 642, 7 L. Ed. 2d 550. Such disfavor, however, is generally confined to motions for a new trial based on newly discovered evidence where lapse of time hampers the ability of the Government to re-try its case. United States v. Smith, 179 F. Supp. 684 (D.D.C. 1959). When the grounds of the motion are that the verdict is contrary to the weight of the evidence or not supported by substantial evidence, the Court should be governed by the "interest of justice" alone. See, United States v. Parelius, 83 F. Supp. 617, 622 (D. Hawaii 1949). Where it is claimed, however, that "error" was committed in the course of the trial, a more definitive set of standards apply. A convicted defendant has the burden of showing first, that error was committed and, second, that such error was prejudicial to him. United States v. Basen, supra, 308 F. Supp. at 66; United States v. Redfield, supra, 197 F. Supp. at 562. Even if demonstrated to exist, an error which "does not effect substantial rights" is considered "harmless" and shall be disregarded. Federal Rules of Criminal Procedure, Rule 52(a), 18 U.S.C. To determine whether or not a given error is harmless, two slightly different tests have evolved. Where the error is of federal constitutional dimension the test is whether it was "harmless beyond a reasonable doubt". Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967). Where, however, the error is not of constitutional magnitude, the test is whether the Court can conclude "with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error". Kotteakos v. United States, 328 U.S. 750, 764-765, 66 S. Ct. 1239, 1248, 90 L. Ed. 1557 (1946); United States v. Panczko, 429 F.2d 683, 686-687 (7th Cir. 1970). It has been held that the decisive factors are the closeness of the case, the centrality of the issue affected by the error, and the steps taken to mitigate the effects of the error. Gaither v. United States, 134 U.S. App. D.C. 154, 413 F.2d 1061, 1079 (1969) (citing cases).

 It is not contended in the present case that the verdict was against the weight of the evidence nor that any of the alleged errors are of constitutional proportion. Accordingly, those errors that are claimed shall be judged by the Kotteakos standard.

 The defendant first objects to hearsay testimony elicited on cross-examination of Special Agent George Miller, the Government's first witness. The agent testified that the language he used when first inquiring of the defendant whether he had something to keep the agent awake was what he was told by the Government's informer that the latter had used when he had made purchases from the doctor "on previous occasions". This testimony, though hearsay, only suggested what properly became a part of the record when the Government not only produced the informer himself but also offered the uncontradicted testimony of its second rebuttal witness to the effect that the defendant had sold and delivered stimulant and depressant drugs to others on occasions previous to his dealings with the Government agents. When offered from a competent source, such testimony is highly relevant to the entrapment issue of whether the defendant was predisposed to commit the crimes charged and was therefore properly admissible. Whiting v. United States, 296 F.2d 512, 516 (1st Cir. 1961). Under the circumstances any error in the initial receipt of this evidence was cured by its proper admission later. Samuels v. United States, 397 F.2d 31 (10th Cir. 1968). It was therefore unquestionably harmless within the Kotteakos standard.

 In a similar attempt to eliminate any possible suggestion that he was predisposed to dispense drugs indiscriminately, the defendant has also urged the impropriety of allowing the Government's first and third rebuttal witnesses to testify to his bad reputation for being a law-abiding citizen. His principal argument is that the Government failed to establish the competency of its witnesses.

 Each of the Government's three rebuttal witnesses were associated with the Unionville High School prior to the defendant's arrest in the Spring of 1969. The first, Garland Hoover, was the school's principal at the time, while the second and third, Charles Folks and Marcia Rice, were both students in their senior years. In the course of the prosecution's direct examination of Mr. Hoover, it was established that the high school was approximately ten to twelve miles distant from Downingtown and that he had heard "quite a few" of his students "discussing" Dr. Martin Neff. During an intervening side bar conference and short recess the prosecutor satisfied the Court that he was entitled to introduce rebuttal evidence of the defendant's bad reputation for truthfulness and for being a law-abiding citizen in the neighborhood where he lived and was known. See Michelson v. United States, 335 U.S. 469, 479, 69 S. Ct. 213, 220, 93 L. Ed. 168 (1948); 1 Wigmore, Evidence § 58 (3d Ed. 1940). Thereafter, the prosecutor asked the witness, "Do you know his general reputation for being a law-abiding citizen among those people in his neighborhood with whom you have discussed Dr. Neff?" Over a general objection, the witness was permitted to answer, "It was not good". At a side bar conference moments later, counsel for the defendant stated that his objection was based on the fact that the Government had failed to demonstrate that those persons who "discussed" Dr. Neff actually knew him. The same reason was assigned in the defendant's motion for a new trial. In his supporting brief, however, counsel added the additional objections that the Government failed to show (1) that the witness himself actually knew Dr. Neff and (2) that any of the students among whom the reputation was held lived in or near Downingtown.

 The same problem arose when the prosecutor attempted to elicit similar bad reputation testimony from Marcia Rice. Early in the course of direct examination it was established that the witness did not know the defendant personally. Thereafter, the prosecutor asked, "Did you know anything of him from your conversation with other persons?" Upon interjection of a general objection from the defendant, the Court directed the prosecutor to first establish the competence of the witness before proceeding further. In response to the prosecutor's ensuing questions it was established that during the interval between August 1968 to February of 1969 the witness knew seven or eight other people with whom she "discussed" Dr. Neff. She was then asked, "Mrs. Rice, can you tell us whether the reputation of Dr. Neff, as you have garnered it from conversations with other persons, would be good or bad?" Defense counsel specifically objected to the question on the ground that the Government, as before, failed to show whether the persons with whom she discussed Dr. Neff's reputation actually knew him. On that basis, the objection was overruled and the witness answered, "Well, it wasn't very good". In his motion for a new trial defense counsel repeated his specific objection and added that the witness was not "otherwise qualified under the Reputation Witness Rule". In his supporting brief, for the first time, he raises the additional objections that (1) the witness did not know the defendant; (2) there was no proof that any of those with whom she discussed the defendant lived in his neighborhood; and (3) that the question answered was not properly limited to the defendant's reputation for being a law-abiding citizen.

 Initially, the Court would observe that the defendant's mere general objection to the bulk of the reputation testimony presently claimed to have been erroneously admitted is ground enough to preclude its further consideration. It is a fundamental principle that a general objection, if overruled, cannot avail the objector on appeal. Similarly, a specific objection, if overruled, will be effective only to the extent of the grounds specified, and no further. United States v. Indiviglio, 352 F.2d 276, 279 (2d Cir. 1965); United States v. Cook, 432 F.2d 1093, 1103 (7th Cir. 1970); 1 Wigmore, Evidence § 18 (3d Ed. 1940). The reason for requiring that specific objection be made is to give the Court an opportunity to prevent errors before they occur or to correct any that are made, if possible, before the case is submitted to the finder of fact. See, United States v. Indiviglio, supra, 352 F.2d at 280. However, due to the kinship of the objection that was properly preserved and the remainder that were later raised, all that were mentioned shall be discussed.

 It is to be noted that the use of reputation evidence constitutes a well recognized exception to the hearsay rule. When used to supply the basis of an inference as to the truth of a fact asserted by a number of other persons, the evidence is testimonial in nature. 5 Wigmore, Evidence § 1609 (3d Ed. 1940). In light of the well settled principle that prohibits proof of particular acts as evidence of an individual's character, its admission is justified on the basis of necessity and upon the presumption that it carries with it a circumstantial guarantee of trustworthiness. Because such evidence is testimonial, both the testifying witness and the source of the testimony are subject to the principles regulating testimonial qualifications. Id. §§ 1610, 1424.

 The competence of the witness himself is determined by a number of different rules. It is fundamental that the witness must have personal knowledge of that to which he testifies. 3 Wigmore, Evidence § 691 (3d Ed. 1970). The general rule requires the witness and the defendant to know one another personally. Michelson v. United States, 335 U.S. 469, 478, 69 S. Ct. 213, 219, 93 L. Ed. 168 (1948). Although it is undoubtedly preferable for the witness to be personally acquainted with the defendant, it has been held that the witness need only know who he is. Commonwealth v. Principatti, 260 Pa. 587, 597, 104 A. 53, 57 (1918). *fn4" Such flexibility in the rule is reasonable for the witness is specifically prohibited from offering an opinion based upon personal familiarity with the defendant alone. See, Deschenes v. United States, 224 F.2d 688, 691 (10th Cir. 1965); United States v. Kaufman, 429 F.2d 240, 247 (2d Cir. 1970). The value of his testimony lies not in what he knows of the defendant's personal habits, character, family, or ...


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